Participants in criminal proceedings and their rights
Each of us may be involved in a criminal proceeding (party or participant in the proceeding), whether as :
- Accused when accused of committing an offence;
- Injured or Victim when one is directly affected by an infraction;
- Complainant when, as an injured party, one asks to intervene in the criminal proceedings to assert his rights;
- Whistleblower when one has reported an offense;
- Third party affected by the procedure when, without being warned, injured or denouncer, the criminal investigation affects us in one way or another.
In the same way, when one is summoned by an authority to be heard about an offence, one can be summoned alternatively with the status of an accused, the status of a person called to give information or the status of a witness.
Each of these statuses corresponds to specific and distinct rights and obligations (right to be heard, right of access to the file, right to silence, right to refuse to testify, etc.), to which the participant in the procedure must be particularly attentive if he does not want to jeopardize his rights.
The accused is the one who is suspected, accused or accused of committing an offence . This is the person against whom the criminal proceedings are directed. If, at the end of the criminal proceedings, there is sufficient evidence of guilt, the accused will be sentenced or may be given a measure.
The accused has intangible rights The accused has the right to remain silent, to refuse to collaborate, to have access to the file and to be assisted by a lawyer from the very first hearing by the police. The defendant’s first statements and initial choice of defense strategy are crucial to the rest of the proceedings.
Consultation with an experienced attorney at the outset of the criminal proceedings is essential to choose the best defense strategy based on the client’s objectives and the specifics of the particular case.
The aggrieved is any person whose rights (property, physical integrity, sexual integrity, honor, …) have been directly affected by a crime. The injured party can be a natural person or a legal entity. The injured party is not formally a party to the criminal proceedings. Thus his only status of injured party does not no access to the file, no right to compensation, no right to a right to appeal against the decisions of the police, the Public Prosecutor’s Office or the Court. In order to do so, he/she must expressly declare that he/she wants to participate in the criminal proceedings as a criminal or civil plaintiff in the criminal proceedings, or file a criminal complaint. When the injured party is heard by a criminal prosecution authority, he or she has the same rights and obligations as a witness.
The victim is an injured person who, as a result of an offence, has suffered direct physical, psychological or sexual harm. The victim has specific rights to protect his/her personality The victim has the right to be protected by the law, such as the right to protective measures, the right to be accompanied by a support person, the right not to be confronted with the alleged offender or the right to refuse to testify.
The complaining party is an injured party who has expressly stated that he or she wishes to participate as a criminal or civil plaintiff in the criminal proceedings, or who has filed a criminal complaint. It has the rights of the parties, such as the right of access to the file, the right to make submissions to the authorities and to participate in the proceedings, the right to appeal against the decisions of the prosecuting authorities or the right to have a lawyer/legal counsel. In particular she can claim compensation for her damage in the criminal proceedings . When the complainant is heard by a prosecuting authority, he or she has the same rights and obligations as a person called upon to provide information.
The status of witness corresponds to the status of a person over 15 years of age and capable of discernment, who did not participate in the crime, but who is likely to make statements useful to the elucidation of the facts.
The injured party is heard as a witness, unless he or she has filed a complaint, in which case he or she is heard as a person called to give information.
The witness has theobligation to testify and tell the truth. In some cases, especially when the witness has a personal relationship with the accused (spouse, parents, brothers and sisters, …) he can refuse to testify. Refusal to testify may occur at any time, even if the witness had initially agreed to testify.
The witness may be assisted by a lawyer.
It is also possible to request that research be done on a witness’s background and personal circumstances to assess credibility.
The status of a person called to give information (PADR) is a hybrid status, halfway between an accused and a witness, because of the lesser credibility that can be given to his or her statements compared to those of a witness.
Thus, the complainant is heard as a person called upon to provide information. The same applies to a person who is not yet 15 years old on the day of the hearing or who has a limited capacity for discernment, or to a person who is not an accused but who may have participated in the facts being investigated or in the commission of a related offence.
With the exception of the complainant, persons called to give information are not required to make statements and may benefit from the provisions applicable to accused persons.
As for the complainant, he or she is obliged to make statements, but may benefit from the provisions applicable to witnesses, particularly with regard to the right to refuse to testify on the basis of personal ties (spouse, parents, brothers and sisters, etc.).
The person called to give information may be assisted by a lawyer.
In criminal proceedings, the informer is any person or entity who reports the commission of an offence to the criminal authority without being involved in the commission of the offence or directly affected in his or her rights by the offence. For example, a bystander who witnesses a crime and calls the police to report it will be considered a whistleblower.
The whistleblower has no other right in the procedure than to know what action has been taken on his or her report.
However, if the informant is heard as a witness by the authority, he or she will have the rights of a witness.
Similarly, if the whistleblower is simultaneously an aggrieved or a complainant, then he or she will have the rights of the aggrieved or complainant.
The third party affected by the proceedings is any natural or legal person who, without being a defendant, injured party or complainant, has his or her rights affected by the criminal proceedings in progress.
This could be a bank whose client’s accounts have been placed in receivership or which is ordered to produce certain documents. It could also be a person whose telephone connection was monitored because he or she was in contact with an accused person and whose prosecution wishes to place excerpts of the recorded telephone conversations in the file for use as evidence.
The third party affected by the procedure has the rights of the parties necessary to safeguard his interests (right to be heard, access to the file, …).
The third party affected by the procedure can thus be assisted by a lawyer.